IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140008414 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, through a member of congress, reconsideration of his earlier request to change his characterization of service from an undesirable discharge (UD) to an honorable discharge (HD) due to medical reasons.

2.  The applicant states:

   a.  while home on leave on 12 May 1970, he received an injury to his right hand causing his middle finger to be amputated;
   
   b.  once he left the Holy Name Hospital, he reported to the St. Albans Naval Hospital in Queens, New York where he received treatment as an outpatient;
   
   c.  Captain Boyd testified at the court-martial, that he (the applicant) was at the hospital and sent to Fort Hamilton in Brooklyn, New York;
   
   d.  he was ultimately assigned to Fort Dix, New Jersey, where he was tried by court-martial and found "not guilty";
   
   e.  while he awaited his court-martial, he received a permanent profile for his right hand and questions how could he be qualified for duty when he was right handed, served in military occupational specialty (MOS) 36K as a field wireman, never provided a DA Form 3349 (Medical Condition - Physical Profile Record), and was never given any mental test; 
   
   f.  he was given a bogus discharge because of his mental status, age, and inability to afford a real lawyer; and 
   
   g.  he has been stuck with his UD for 40 years when he could have received a pardon if he would have run off to Canada.
   
3.  The applicant's Representative in Congress also requests review of the applicant's request to ascertain why he never received a DD Form 215 (Correction to the DD Form 214) evidencing his honorable characterization of service.

4.  The applicant provides:

* Member of Congress Letter
* Privacy Statement
* self-authored statement
* Special Court-Martial (SPCM) Order, dated 8 May 1972
* DA Form 3349
* National Archives and Records Administration (NA) Form 13042 (Request for Information Needed to Locate Medical Records) 
* two Standard Forms 600 (Health Record – Chronological Record of Medical Care)
* two Standard Forms 513 (Clinical Record – Consultation Sheet)
* DD Form 214 (Report of Separation from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100022904, on 14 June 2011.

2.  In view of the associated congressional interest, this case is being reconsidered as an exception to policy.

3.  The applicant enlisted in the Regular Army on 14 February 1969, for a period of 3 years.  He was trained in and awarded MOS 36K.


4.  His record shows he twice accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates as indicated:

* 8 April 1969, for being absent without leave (AWOL) from his unit on 8 April 1969
* 4 June 1969, for failing to go at the time prescribed to his appointed place of duty on 2 June 1969

5.  Headquarters, United States Army Training Center, Infantry and Fort Dix, New Jersey, SPCM Orders Number 114, dated 8 May 1972, shows the applicant was tried for violating Article 86 of the UCMJ for being AWOL from 18 September 1970 to 23 January 1972.  It also shows that pursuant with his plea, the defense moved for a finding of not guilty which was granted by the Military Judge on 18 April 1972.

6.  On 11 September 1974, a DA Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for twice violating Article 86 of the UCMJ by being AWOL from on or about from 25 April to 22 May 1972 and from 31 May 1972 to 9 September 1974.

7.  On 13 September 1974, the applicant was notified of the proposed action taken to separate him under the provisions of paragraph 13-5a(1) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for unfitness.  On 16 September 1974, he underwent a mental status evaluation which showed:

* his behavior and thought content were normal
* he was fully alert and oriented
* his mood was level
* his thinking process was clear
* his memory was good
* he had no significant mental illness
* he able distinguish right from wrong and adhere to the right
* he was mentally responsible
* he met retention requirements
* he had the mental capacity to understand and participate in separation proceedings.

8.  On 16 September 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and of the effect of a waiver of those rights.  Subsequent to this counseling, he elected to waive consideration of his case by an appearance before a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

9.  On 4 October 1974, the separation authority approved the applicant’s separation under the provisions of paragraph 13-5(a)1, Army Regulation
635-200, by reason of unfitness and directed the applicant receive a UD.  On 17 October 1974, the applicant was discharged accordingly.  

10.  The DD Form 214 issued to the applicant on 17 October 1974, the date of his separation, shows he was discharged from the Army under the provisions of paragraph 13-5a(1), Army Regulation 635-200.  It also shows that he completed a total of 1 year, 8 months, and 22 days of creditable active military service, and that he accrued 730 days of time lost due to AWOL. 

11.  On 2 November 1982, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny his request for a change in the type of his discharge.

12.  The applicant's military record does not include any evidence to show he suffered from a physical or mental condition warranting his processing through the Army's Physical Disability Evaluation System (PDES).

13.  The applicant provides a DA Form 3349, dated 28 February 1972, which shows he was returned to his unit and found medically qualified for duty with permanent limitations on 25 February 1972.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 13, in effect at the time, provided the authority for the separation of enlisted personnel for various acts of misconduct which included patterns of misconduct (frequent incidents, shirking, failure to pay just debts, failure to support dependents, and unsatisfactory performance.)  A UD was normally appropriate for members discharged for misconduct.

   b.  Paragraph 3-7a provides that an HD is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.
   
   c.  Paragraph 3-7b provides that a GD is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth the policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

	a.  Paragraph 1-5 states that a Soldier who is charged with an offense or is under investigation for an offense for which he/she could be dismissed or given a punitive discharge may not be referred for disability processing.

	b.  Paragraph 2-2b states that when a member is being separated by reason other than physical disability, the Soldier's continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that the Soldier was unable to perform his/her duties.

	c.  Chapter 3 contains the policy and outlines the standards for determining unfitness because of physical disability.  It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his/her grade, rank, or rating.

	d.  Paragraph 3-3b(1) states that for an individual to be found unfit by reason of physical disability, the Soldier must be unable to perform the duties of his/her office, grade, rank or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UD should be changed to an HD due to medical reasons because he lost his third middle finger and as a result of his mental status and age.  By regulation, the mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform due to his office, grade, rank, or rating.

2.  The evidence of record confirms that while the applicant did lose his third right finger, he was found medically qualified for duty and a mental status evaluation revealed no mental defects.

3.  As it relates to the applicant's Member of Congress' request to upgrade his discharge as a result of the "not guilty" verdict rendered by the SPCM in this case, the evidence of record confirms that this SPCM had no bearing on the UD he received.

4.  The evidence of record confirms that subsequent to the applicant's "not guilty" findings, he was reported AWOL again on two separate occasions totaling 730 days and as a result, his commander initiated separation action against him under the provisions of paragraph 13-5a(1), Army Regulation 635-200.  His separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal a disciplinary history that includes his acceptance of NJP on two separate occasions.  As a result, his record was not sufficiently meritorious to support the issue of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade at this late date.  Absent any evidence of any error or injustice related to his discharge processing, there is an insufficient evidentiary basis to support granting the requested relief in this case.  

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100022904, dated 14 June 2011.




      _______ _   _x______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20140008414





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140008414



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1